United States District Court, N.D. New York
March 22, 2004.
ETHEL COLON, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant
The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge Page 2
DECISION AND ORDER
Ethel Colon alleges that bilateral carpal tunnel syndrome and arthritis
in her neck and knees have disabled her, and challenges the denial of
disability benefits by the Commissioner of Social Security. Having
reviewed the administrative record, the court concludes that the
Commissioner's decision was based on substantial evidence, and affirms.
II. Procedural History
After Colon filed for disability benefits in August 1997, her
application was denied, and a hearing was conducted by Administrative Law
Judge Joachim Volhard (ALJ). A vocational expert (VE), William Armani,
testified at a supplemental hearing. In January 1999, the ALJ issued a
decision denying benefits which became the Commissioner's final
determination when the Appeals Council denied review on February 8, 2000.
On April 10, 2000, Colon brought this action pursuant to
42 U.S.C. § 405(g) seeking review of the Commissioner's final determination.
The Commissioner then filed an answer and certified administrative
transcript, Colon filed a brief, and the Commissioner responded.
Colon contends that the Commissioner's decision is unsupported by
substantial evidence, and erroneous as a matter of law. Specifically, she
maintains that contrary to the testimony of the vocational expert: (i)
she is physically incapable of working as a video surveillance monitor;
(ii) such positions do not exist in the regional economy; and (iii) 100
such positions do not constitute a "significant number" in the regional
economy. She also argues that the ALJ erred when he failed to conclude
that she was "disabled" due to "significant erosion" of her "occupational
The Commissioner counters that substantial evidence supports the ALJ's
decision because he properly relied on the VE, including testimony about
the existence of a significant number of jobs in the national economy.
Colon was forty-seven years old at the time of the ALJ's decision, and
has an eleventh-grade education. (Tr. 64, 84). From 1988 to July 21,
1997,*fn1 she worked as a parts assembler and welder at a medical
equipment manufacturing facility. (Tr. 84). The job required her to stand
for about eight hours, walk for one hour, frequently bend,
constantly reach, and frequently lift, push, and pull boxes weighing
approximately ten pounds. (Tr. 85).
In her SSA disability report, she asserted disability because of "burrs
in the neck, arthritis in the neck . . . carp[al] tunnel in both hands
[and] arthritis in [her] knees." (Tr. 80-85). She complained of daily
fatigue and wrist and neck pain. Later, she stated that she needed the
assistance of her husband and daughter while shopping, cooking, and
cleaning. (Tr. 90-94). She also stated that she experienced wrist pain
when writing, pushing, or pulling, that she needed to change positions
frequently due to constant neck pain, and that her symptoms had
progressively deteriorated. (Tr. 93, 96-97).
A. Medical Evidence
1. Michael Tan. M.D. (orthopedic surgeon)
Dr. Tan, Colon's treating orthopedic surgeon, diagnosed her with frozen
shoulder syndrome and early carpal tunnel syndrome in 1991. (Tr. 200). In
1994, he performed carpal tunnel release on her hands. (Tr. 92, 201). In
1996, he diagnosed her with degenerative disc disease of the cervical
spine, and continued his diagnosis of carpal tunnel syndrome.
In 1998, Dr. Tan completed a medical assessment report, and estimated
that Colon could lift and carry a maximum of twenty pounds, and ten
pounds occasionally or frequently. (Tr. 178). He indicated that the
impairments did not affect her ability to stand, walk, and sit. (Tr.
179). He found that she could frequently climb and balance, and
occasionally stoop, crouch, and kneel. (Tr. 179). However, he found she
could not crawl, since "forward flexion is markedly affected by neck
discomfort." (Tr. 179).
Noting neck stiffness extending into the base of the neck, shoulders
and arms, Dr. Tan found that Colon's reaching, handling, feeling, and
pushing/pulling functions were affected by her recurring symptoms of
bilateral carpal tunnel, and diagnostic evidence of cervical disc
degeneration. (Tr. 180-81). He also found that her impairments caused
environmental restrictions, including temperature extremes, humidity, and
vibration. (Tr. 180). He opined that Colon "cannot perform her usual
highly repetitive assembly work, which in addition requires repetitive
neck, head and eye movements." (Tr. 181).
2. Joel Amidon, D. O. (osteopath, Rome Medical
In October 1997, the Rome Medical Group assessed Colon with
degenerative joint disease of the cervical spine and post-release carpal
tunnel syndrome. (Tr. 98-101). A month later, Dr. Amidon, an osteopath in
the Group, indicated that Colon had been complaining of "severe neck
pain, upper back pain, and pain that goes into her hands bilaterally,"
symptoms which were exacerbated when she turned her head, moved, or
sneezed. (Tr. 160). An MRI was negative, and he recommended "vigorous
physical therapy" to treat her symptoms, caused "probably [by] some
ligamentous strain." (Tr. 157). A Social Services assessment indicated
that Colon was able to lift, carry, push/pull a maximum often pounds,
stand/walk for two hours a day, and sit up to six hours. She also had
problems with bending and manipulation, could not hold a pen, and had
environmental limitations. (Tr. 164-65).
In March 1998, Dr. Amidon noted that Colon's neck pain had "remarkably
improved," and that she had tenderness along the left cervical spine, and
severe spasm of the neck along the trapezius muscle. (Tr. 148). He noted
that her pain was improving with medication. (Tr. 148).
In May 1998, Dr. Amidon assessed Colon's work-related abilities,
and indicated that she could only occasionally lift and carry a
maximum of five pounds, as lifting more would cause strain in her neck,
shoulder, and arms. (Tr. 144-47). He found that she could not carry any
weight frequently because repetitive lifting would exacerbate her
symptoms. (Tr. 144). He further found that Colon could stand and/or walk
for a total of four hours, and that she could sit for another four hours,
each at intervals of twenty to thirty minutes without interruption. (Tr.
145). The doctor noted that prolonged standing led to neck and upper back
spasm, and that Colon should stand and move frequently. (Tr. 145).
As compared to Dr. Tan, Dr. Amidon found that Colon was more limited in
her postural activities: she could never climb, balance, or crawl, and
could only occasionally stoop, crouch, and kneel. (Tr. 145). He noted
that her impairments affected her ability to reach, handle, feel, and
push/pull. (Tr. 146; see 178-81). He noted several environmental
limitations related to heights, moving machinery, temperature extremes,
dust, fumes, humidity, and vibration. (Tr. 146). Finally, he opined that
Colon could return to work by August 1, 1998, but deferred that decision
to Dr. Tan. (Tr. 147).
Finally, Colon's attorney asked Dr. Amidon to comment on two prior
Residual Functional Capacity (RFC) assessments provided by Social
Security doctors, (see Tr. 108-28, 129-32). The physical RFC
found that Colon could occasionally lift up to twenty pounds, frequently
lift ten pounds, stand, walk, and sit for six hours a day, but Dr. Amidon
opined that the assessment might be incorrect in light of her recurrent
need for therapy. (Tr. 224-25). Dr. Amidon stated, however, that the
assessment was essentially accurate, with the exception that Colon might
need additional therapy "if she participates for a full days (sic)
duties." (Tr. 224). He agreed with the mental RFC assessment that Colon
had mild depression. (Tr. 224).
3. Residual Functional Capacity Assessments
In December 1997, Dr. Weingartner, a consulting physician, provided the
physical RFC assessment, and found that Colon could occasionally lift
twenty pounds, frequently lift ten pounds, and could stand, walk, and sit
for six hours each. (Tr. 122). He found that she had no postural, visual,
communicative, environmental, or manipulative limitations, with the
exception of "no repetitive fingering." (Tr. 124-25). He concluded that
Colon was not as restricted as her treating sources indicated because
there were no concrete abnormal symptoms in support
of her complaints. (Tr. 127). An SSA medical consultant agreed with
Dr. Weingartner's assessment. (Tr. 129). A psychiatric evaluation
revealed that Colon suffered from mild depression, and a mental RFC
assessment confirmed that diagnosis. (Tr. 105-19).
4. The Administrative Hearing
The ALJ found that Colon's "allegations of a limited ability to lift,
carry, push and pull and a need to change positions frequently [were]
supported by the medical record." (Tr. 10). He determined that her
symptoms significantly limited her RFC, and sought assistance from a
vocational expert. (Tr. 10, 40-53).
Mr. Armani, the VE, classified Colon's past relevant work as unskilled
light work, requiring the lifting of up to ten-twelve pound weights and
long periods of standing. (Tr. 44-45). The ALJ then asked the VE whether
there were any available jobs, assuming an individual with Colon's past
relevant work, age, and education, and with the physical restrictions
contained in Dr. Amidon's*fn2 medical assessment report. (Tr. 48;
see Tr. 144-47).
The VE testified that such a person could not return to her past
relevant work as a parts assembler, but could perform the job of
security system monitor, an unskilled sedentary occupation. (Tr. 48-49).
He stated that there were approximately 100,000 such jobs nationally, and
more than 100 regionally. (Tr. 49). He also testified that the position
would require no significant lifting, and that paperwork would be limited
to filling out a few documents at the end of the shift, such as incident
reports. (Tr. 49). Based on his observations and notes and on the job's
description in the Department of Labor's Dictionary of Occupational
Titles (DOT),*fn3 the VE testified that such jobs were available in
public buildings (including colleges), parking garages, and stores. (Tr.
In a hypothetical, Colon's attorney asked the VE whether a person with
Colon's limitations, i.e. someone who was able to stand/walk for
four hours and sit for four hours with twenty to thirty minute
interruptions each, could work as a surveillance system monitor. (Tr.
51-52). The VE testified that the position would accommodate such
limitations because the individual would be able to stand and sit at will
and still see the video monitors. (Tr. 52-53). The VE stated that
surveillance system monitors usually observed four to five screens from a
convenient ten-foot distance,
and were not required to repetitively move their head or eyes. (Tr.
A. Standard and Scope of Review
When reviewing the Commissioner's final decision, the court must
determine whether the correct legal standards were applied and whether
substantial evidence supports the decision. Urtz v. Callahan,
965 F. Supp. 324, 326 (N.D.N.Y. 1997) (citing Johnson v. Bowen,
817 F.2d 983, 985 (2d Cir. 1987)). Although the Commissioner is
ultimately responsible for determining a claimant's eligibility, the
actual disability determination is made by an ALJ, and that decision is
subject to judicial review on appeal. A court may not affirm an ALJ's
decision if it reasonably doubts whether the proper legal standards were
applied, even if it appears to be supported by substantial evidence.
Johnson, 817 F.2d at 986. In addition, an ALJ must set forth the
crucial factors justifying his findings with sufficient specificity to
allow a court to determine whether substantial evidence supports the
decision. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
A court's factual review of the Commissioner's decision is limited to
the determination of whether substantial evidence in the record supports
the decision. 42 U.S.C. § 405(g); see Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial evidence
has been defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Williams ex rel Williams
v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It
must be "more than a mere scintilla" of evidence scattered throughout the
administrative record. Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990). "To determine on appeal whether an ALJ's findings are supported by
substantial evidence, a reviewing court considers the whole record,
examining the evidence from both sides because an analysis of the
substantiality of the evidence must also include that which detracts from
its weight." Williams, 859 F.2d at 258. However, a reviewing
court cannot substitute its interpretation of the administrative record
for that of the Commissioner if the record contains substantial support
for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775
(4th Cir. 1972); see a/so Rutherford v. Schweiker, 685 F.2d 60,
62 (2d Cir. 1982).
The court has authority to reverse with or without remand.
42 U.S.C. § 405(g). Remand is appropriate where there are gaps in
the record or further development of the evidence is needed. See
Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); Cutler v.
Weinberger, 516 F.2d 1282, 1287 (2d Cir. 1975) (remand to permit
claimant to produce further evidence). Reversal is appropriate, however,
when there is "persuasive proof of disability" in the record and remand
for further evidentiary development would not serve any purpose.
Parker, 626 F.2d at 235; Simmons v. United States R.R. Ret.
Bd., 982 F.2d 49, 57 (2d Cir. 1992); Carroll v. Sec'y of
HHS, 705 F.2d 638, 644 (2d Cir. 1983) (reversal without remand for
additional evidence particularly appropriate where payment of benefits
already delayed for four years and remand would likely result in further
lengthening the "painfully slow process" of determining disability).
B. Five-Step Disability Determination
In the Social Security Disability Insurance and Supplemental Security
Income context, the definition of "disabled" is the same. A plaintiff
seeking SSDI or SSI is disabled if she can establish that she is unable
"to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to
for a continuous period of not less than twelve months. . . ."
42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A)*fn4 (emphasis added).
The Commissioner uses a five-step process to evaluate SSDI and SSI
disability claims. See 20 C.F.R. § 404.1520, 416.920. Step
One requires the ALJ to determine whether the claimant is presently
engaging in substantial gainful activity (SGA).
20 C.F.R. § 404.1520(b), 416.920(b). If so, she is not considered disabled.
If not, Step Two requires the ALJ to determine whether the claimant has a
severe impairment. 20 C.F.R. § 404.1520(c), 416.920(c). If the claimant is
found to suffer from a severe impairment, Step Three requires the ALJ to
determine whether the claimant's impairment meets or equals an impairment
listed in 20 C.F.R. Part 404, Subpart P., Appendix 1, §§ 404.1520(d),
416.920(d). If the impairment meets or equals a listed
impairment, the claimant is presumptively disabled.
Ferraris, 728 F.2d at 584. If the claimant is not presumptively
disabled, Step Four requires the ALJ to consider whether the claimant's
RFC precludes the performance of her past relevant work.
20 C.F.R. § 404.1520(e), 416.920(e). At Step Five, the ALJ determines
whether the claimant can do any other work. 20 C.F.R. § 404.1520(f),
The claimant has the burden of showing that she cannot perform past
relevant work. Ferraris, 728 F.2d at 584. However, once she has
met that burden, the ALJ can deny benefits only by showing, with specific
reference to medical evidence, that the she can perform some less
demanding work. See White v. Sec'y of HHS, 910 F.2d 64, 65 (2d
Cir. 1990); Ferraris, 728 F.2d at 584. In making this showing,
the ALJ must consider the claimant's RFC, age, education, past work
experience, and transferability of skills, to determine if the she can
perform other work existing in the national economy. §§
404.1520(f), 416.920(f); see New York v. Sullivan, 906 F.2d 910,
913 (2d Cir. 1990).
In this case, the ALJ found that Colon satisfied Step One because she
had networked since July 21, 1997. (Tr. 12). In Step Two, the ALJ
determined that she suffered from severe impairments, including cervical
arthritis and bilateral carpal tunnel syndrome status post carpal
tunnel syndrome release surgery. (Tr. 12). In Step Three, the ALJ
determined that her impairments failed to meet or equal a combination of
impairments listed in, or medically equal to one listed in Appendix 1,
Subpart P., Regulation No. 4. (Tr. 12). In Step Four, the ALJ determined
that Colon did not have the RFC to perform her past relevant work as an
assembler. (Tr. 12). In Step Five, the ALJ found that Colon possessed the
RFC to work as a surveillance system monitor, as supported by the
evidence in the administrative record and the testimony of the VE.
Consequently, he found Colon not disabled and denied benefits. (Tr. 12).
C. Substantial Evidence
1. Vocational Expert Testimony
Colon erroneously argues that the ALJ's decision is unsupported by
substantial evidence. When a claimant's ability to perform a full range
of a particular category of work is limited, or where the transferability
of her work skills to other jobs are at issue, the ALJ may use the
services of a vocational expert. See
20 C.F.R. § 404.1566(e), 416.966(e); see Bapp v. Bowen, 802 F.2d 601, 603
(2d Cir. 1986) (holding that the Commissioner can satisfy her burden of
showing that jobs exist nationally
or regionally by introducing vocational expert testimony). The
vocational expert may testify as to the existence of jobs in the national
economy, as well as to the claimant's ability to perform any of those
jobs, given her functional limitations. See Rautio v. Bowen,
862 F.2d 176, 180 (8th Cir. 1988); Dumas v. Schweiker,
712 F.2d 1545, 1553-54 (2d Cir. 1983). In determining whether such jobs
exist, a VE may rely on information available from governmental and other
publications, such as the DOT. See 20 C.F.R. § 404.1566(d),
A vocational expert's opinion is useful when the hypothetical questions
posed reflect the capabilities of the claimant. See Aubeuf v.
Schweiker, 649 F.2d 107, 114 (2d Cir. 1981); Bosmond v.
Apfel, No. 97 Civ. 4109, 1998 WL 851508, at *8 (S.D.N.Y. Dec. 8,
1998). The ALJ is responsible for determining the claimant's capabilities
based on all the evidence, Dumas, 712 F.2d at 1554, and the
hypothetical question(s) must present the full extent of the claimant's
impairments to provide a sound basis for the expert's testimony. See
De Leon v. Sec'y of Human Services, 734 F.2d 930, 936 (2d Cir.
1984); Lugo v. Chater, 932 F. Supp. 497, 503-04 (S.D.N.Y. 1996).
The Second Circuit has stated that there must be "substantial record
evidence to support the assumption upon
which the vocational expert based his opinion." Dumas, 712
F.2d at 1554. See also Aubeuf, 649 F.2d at 114; Renna v.
Barnhart, 02-CV-765, 2003 WL 21005281, at *3 (E.D.N.Y. May 3, 2003)
(citing Dumas, 712 F.2d at 1554).
Here, Colon first claims that contrary to the VE opinion upon which the
ALJ relied, she is not physically capable of performing the job of
surveillance system monitor. She claims that the position is "much more
physically demanding than indicated in the testimony of the vocational
expert." PI. Br. at 8. She further contends that the VE
"seemingly ignored the findings of Dr. Amidon." PI. Br. at 9.
The ALJ, having determined that Colon's impairments "significantly
limit[ed] her residual functional capacity," posed a hypothetical
question to the VE, which included Colon's age, education, and past
experience. (Tr. 48). The ALJ further instructed the VE to consider
Colon's physical impairments and functional limitations, as reflected in
Dr. Amidon's report, and gave the VE a copy of the report. (Tr. 46, 48,
144-47). The report included Colon's limited ability to lift and carry a
maximum weight of five pounds, her ability to stand/walk and sit for four
hours each for intervals of twenty to thirty minutes each, her need to
shift positions frequently, and
her postural, physical, and environmental limitations.
After taking into account the ALJ's hypothetical and the limitations
contained in Dr. Amidon's report, the VE testified that while Colon could
not perform her past relevant work as a parts assembler, she could
perform the job of surveillance system monitor. (Tr. 48). The VE further
testified that such a job would require minimal lifting, almost no
paperwork, would accommodate someone requiring to stand every twenty to
thirty minutes, and would involve looking at no more than five monitors.
(Tr. 49-53). The VE's determination specifically relied on the DOT job
definition. (Tr. 50-51).
As mentioned, the DOT is a reliable official source of job information,
and Colon's implication that the VE may have misunderstood the
requirements of the position has no support in the record. Accordingly,
this court finds that the ALJ properly retained and relied on the
testimony of a vocational expert, and provided the VE with the full
extent of Colon's impairments so as to allow the expert to base his
opinion on "substantial record evidence." See Dumas, 712 F.2d at
2. "Significant Number" of Jobs Erosion of
Colon's second and third contentions are that contrary to the VE's
opinion, surveillance system monitor jobs do not exist in the
regional economy, and even if they did, one hundred such jobs do not
constitute a "significant number." Pl. Br. at 12-13. The
proposition that jobs do not exist in the regional economy has no legal
merit. As noted, a plaintiff seeking disability benefits must establish
that she is "unable to engage in any substantial gainful
activity by reason of any medically determinable
physical . . . impairment. . . ." 42 U.S.C. § 423(d)(1)(A),
1382c(a)(3)(A) (emphasis added). In addition, a claimant's
physical or mental impairment or impairments [must
be] of such severity that [s]he is not only unable
to do h[er] previous work but cannot, considering
h[er] age, education, and work experience, engage
in any other kind of substantial gainful work
which exists in the national economy, regardless
of whether such work exists in the immediate area
in which [s]he lives, or whether a specific job
vacancy exists for h[er], or whether [s]he would
be hired if [s]he applied for work.
42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B) (emphasis added).
Furthermore,"work exists in the national economy when there is a
significant number of jobs (in one or more occupations) having
requirements which [the claimant is] able to meet with [her] physical or
mental abilities and vocational qualifications."
20 C.F.R. § 404.1566(b), 416.966(b). Finally, according to the same
regulations, a claimant's
inability to obtain such work, the unavailability of work in the
claimant's local area, or the unavailability of job openings, among
others, do not constitute grounds for a disability finding.
See 20 C.F.R. § 404.1566(c), 416.966(c).
The VE testified that there were approximately 100,000 such jobs
nationally, and 100 regionally. (Tr. 49). In his decision denying
benefits, the ALJ relied on the national job information. (Tr. 11, 12).
Although Colon argues that those jobs are unavailable in the regional
economy, the truth of that assertion is irrelevant because it fails to
consider the proper legal standard.
Next, Colon contends that the Commissioner has failed to meet her
burden of proof because surveillance system monitor jobs do not exist in
"significant numbers" in the national economy. PI. Br. at 13-16.
She argues that according to Social Security Ruling 96-9p (SSR 96-9p),
the ALJ should have considered, in light of her impairments, whether
there had been a "significant erosion" of the "occupational base"
available to her. PI. Br. at 13-16; see SSR 96-9p.
In Kuleszo v. Barnhart, 232 F. Supp.2d 44, 55 (W.D.N.Y.
2002), the District Court intimated that the availability of a single
occupation might constitute per se support for a
disability determination because the full range of sedentary work has
been significantly eroded. This court is persuaded, however, that the
regulations dictate a contrary conclusion.
As the regulations and SSR 96-9p point out, "`[s]edentary work'
represents a significantly restricted range of work, and individuals with
a maximum sustained work capability limited to sedentary work have very
serious functional limitations." 20 C.F.R. Pt. 404, Subpt. P, App. 2
§ 201.00(4); see SSR 96-9p. Where an individual is unable
to perform the full range of sedentary work, her occupational base will
be eroded by additional limitations or restrictions on her exertional and
non-exertional capacities.*fn5 SSR 96-9p. According to the Ruling, if
any of a claimant's capacities are limited or restricted, her
occupational base would erode significantly. Id. Thus, according
to the Ruling, "a finding of `disabled' usually applies when the full
range of sedentary work is significantly eroded." Id.
Colon argues that the ALJ should have applied the guidelines in SSR
96-9p. She contends that application of those guidelines would mandate a
disability determination because several of her exertional and
non-exertional capacities were limited and/or restricted. Specifically,
she claims that the ALJ should have found that her occupational base was
seriously eroded by her: (1) inability to carry more than five pounds;
(2) inability to sit and stand for four hours each (as well as to
alternate both); (3) need to frequently change positions; and (4)
postural, manipulative, and environmental restrictions. Therefore, she
maintains that the ALJ should have found her "disabled" as a matter of
law. PI. Br. at 13-14.
To the contrary, SSR 96-9p specifically emphasizes that "a finding that
an individual has the ability to do less than a full range of sedentary
work does not necessarily equate with a decision of `disabled.'"
SSR 96-9p. Furthermore, the "mere inability to perform substantially all
sedentary unskilled occupations does not equate with a finding of
disability. There may be . . . jobs that exist in significant numbers,
that an individual may still be able to perform even with a sedentary
occupational base that has been eroded." Id.
The significant erosion of one's occupational base neither ends the
inquiry, nor mandates a finding of disability. SSR 96-9p appears to
function as general supplemental guidance for Social Security
adjudicators in their decision-making process. It also directs the use of
additional vocational resources, such as vocational experts, when "an
individual has been found to have a limited ability in one or
more . . . basic work activities." SSR 96-9p.
The ALJ was not required to make a determination of disability based on
the erosion of Colon's occupational base and properly deferred to the VE
the determination of availability of jobs within the category of
sedentary work. The purpose of the VE's testimony was to determine
whether Colon was able to perform any work despite her serious physical
impairments. The availability of only one sedentary occupation,
i.e. surveillance system monitor, although an indicium that
Colon's full range was significantly eroded, did not mandate a finding
that she was disabled. Such a finding would be in contravention of clear
statutory language requiring that a claimant be unable to engage in
any kind of gainful employment, available nationally or
regionally. See 42 U.S.C. § 423(d)(1)(A), 423(d)(2)(A),
After carefully reviewing the entire record, and for the reasons
stated, the Commissioner's denial of benefits was based on
substantial evidence and not erroneous as a matter of law. Accordingly,
the ALJ's decision is affirmed.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED, that the decision denying disability benefits is
AFFIRMED; and it is further
ORDERED that the Clerk of the Court serve a copy of this
Order upon the parties by regular mail.